Excerpt: .../22/22), the right to challenge assignments set forth in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, was limited to those assignments which were void ab initio, not those which were merely voidable. (See also Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279.) Since the operative pleading was deficient, and the related Notice of Lis pendens therefore defective, the previous cloud was ordered expunged. Plaintiff has si...

Excerpt: ...t and a clerk's judgment based upon the amount in controversy, with no request for prejudgment interest or legal fees. That same day, the clerk entered default and a judgment thereon. Nine months later, on 06/07/22, plaintiff filed a motion to have that default judgment set aside. That motion was summarily denied pursuant to Local Rule 3.3.7. Plaintiff has now renewed the same motion. There is no memorandum of points and authorities accompanying ...

Excerpt: ...d that the initially‐proffered class representative (Lorraine Larson) was not sufficiently typical to faithfully represent the classes because: 1. She had a pre‐existing, and unrelated, adversarial relationship with the defendant, having lost her job under a discipline cloud; 2. She had an office with a door, and could eat at her workstation, removing her entirely from the concern regarding travel time tardiness; 3. She had a settlement agree...

Excerpt: ...“Doe” placeholders from 10 to 20. There is no opposition filed. According to the proof of service, notice of the motion was timely provided to defense counsel. According to plaintiff's counsel, defense counsel declined to stipulate to the request for leave. To amend a pleading already at issue, the sponsoring party is required first to seek leave of court by way of noticed motion. (CCP §473(a)(1).) Pursuant to CRC 3.1324, the moving party mu...

Excerpt: ...seeks an order “vacating” that decision, while plaintiff seeks an order confirming the decision. Although the parties (and at times, this Court) have liberally referred to the reference as an “arbitration,” it was in actuality a consensual reference per CCP §638 et seq. References of this nature are not subject to trial court review for confirmation, correction or vacation as would an arbitration award. The referee's decision must be ent...

Excerpt: ... action and the health of that party is such that preference is necessary to prevent prejudicing that party's interest therein. Plaintiff is 79 years of age, and the plaintiff – which usually means she has a substantial interest in the action warranting trial preference. However, whether plaintiff's health “is such that a preference is necessary to prevent prejudicing the party's interest in the litigation,” (CCP §36(a)(2)), is not quite c...

Excerpt: ...f civil claims relating to FERC licenses; and (3) statute of limitations. Brief Factual Background Defendant Tri‐Dam is a cooperative venture between co‐defendants Oakdale Irrigation District and the South San Joaquin Irrigation District (collectively referred to as “TriDam”). Tri‐Dam holds a federal license to operate and maintain a hydroelectric project between the Tulloch Dam, the Donells Dam and the Beardsley Dam, and encompassing t...

Excerpt: ...ponses. On 3/31/22, counsel for plaintiff emailed defense counsel to inquire about the overdue responses to the RPD. Defense counsel did not respond. On 07/18/22, plaintiff filed and served the pending motion. Although the motion involves both the Special Interrogatory and the RPDs, thus requiring the tender of two filing fees per Govt. Code §70617, plaintiff has not responded to the motion. This Court would like to believe that the silence is e...

Excerpt: ...ced underneath a mattress in a room containing the suspect's personal effects. The balance of the funds ($1,200.00) were located inside the suspect's wallet, which was on the mattress in question. The house was filled with cannabis plants (1,562) and a reasonably sophisticated growing operation. According to Deputy Seawell, the “street value” of the cannabis collected from the residence exceeded $4M, removing the operation from any “persona...

Excerpt: ...urrer to these same causes of action (filed by other parties), and gave plaintiff 30 days with which to amend to cure. In opposition to this pending demurrer, plaintiff acknowledges his intent to amend the operative pleading in such a way as to also cure the concerns raised by Real Time Resolutions Inc. Thus, as a practical matter, the demurrer may be treated as substantively MOOT, although there is the related question of whether plaintiff shoul...

Excerpt: ...reto, counsel's supporting declaration must demonstrate that defendant “failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.” (CCP §439(a)(3)(B).) Counsel's declaration provides only that he placed one phone call, and elected not to leave a message when nobody answered the phone. That is hardly compliant with the spirit, if not the letter, of the statute. The statute specifically provides tha...

Excerpt: ...rfect pleading by directing a demurrer and motion to strike at this now‐operative pleading. The operative pleading presently includes the following six causes of action: statutory Right to Repair Act; breach of written sales contracts; intentional concealment/nondisclosure, negligent nondisclosure, intentional misrepresentation, and negligent misrepresentation. Defendants contend that the nondisclosure and misrepresentation claims fail to inclu...

Excerpt: ...th residences. The history between plaintiff and defendant is complex, as reflected in the various legal proceedings between them. (See 20CH45068, 21UD13373, 21UD13416, and 21CH45278.) In this seemingly ordinary civil action, plaintiff alleges thirteen (13) causes of action, ranging from breach of contract to invasion of privacy and assault. Before the Court is plaintiff's motion for judgment on the pleadings (defendant's answer, filed 09/02/21),...

Excerpt: ....7 (adopted 1/1/18), this Court elects to proceed given the time‐sensitive nature of this anomalous proceeding. In November of 2007, Gus Zamora (father), Dave Zamora (son) and Clyde Clapp (Gus' close friend) pooled together their respective resources to acquire APN 073‐044‐006, commonly known as 1521 Country View Drive in Valley Springs. [Because of the common last names, the court will refer to the parties by their first names in this ruli...

Excerpt: ...t a stand‐alone cause of action, also finding that in the context of public entity liability, it was surplusage. Plaintiff's motion, which is described as a motion for reconsideration under CCP §1008, is defective in numerous respects. First, a motion for reconsideration may only be pursued by the party aggrieved “within 10 days after service upon the party of written notice of entry of the order.” (CCP §1008(a).) Plaintiff was served wit...

Excerpt: ...ederal court to set aside the foreclosure sale, and (7) resisting eviction efforts. Plaintiff does not dispute that his deed of trust allowed for undisclosed assignments, that the foreclosure sale was free from procedural defects, and that the current owners qualify for BFP status. Nevertheless, plaintiff contends that the law of wrongful foreclosure has changed over the past decade in his favor, entitling him to try it all over again. Defense Mo...

Excerpt: ...relief) causes of action, filed by defendant IRBC2 Properties. Motion to Expunge – Granted, Without Prejudice A lis pendens is a recorded document giving constructive notice to the world that an action is pending in the courts which may have an impact on the litigants' right or title to the property. (See Park 1000 Investment Group II v. Ryan (2010) 180 Cal.App.4th 795, 807; Formula Inc. v. Superior Court (2008) 168 Cal.App.4th 1455, 1462; Palm...

Excerpt: .... Since the inception of this action, plaintiffs have been represented by Attorney Michael Abbott. Defense counsel mail‐served the motion to expunge to Attorney Abbott's office on 06/21/22. Defense counsel personally dropped off (through a mail slot) the demurrer to Attorney Abbott's office on 06/29/22. On 07/15/22, defense counsel sent to Attorney Michael Abbott, via overnight mail, a notice of having not received any opposition to the pending...

Excerpt: ...nk Answer failed to state any defense to the action. pursuant to CCP §438. Despite there being no opposition to the motion, this Court denied the motion on procedural grounds. On 12/03/21, plaintiff filed a second motion for judgment on the pleadings (CCP §438), contending (again) that the blank Answer failed to state any defense to the action. pursuant to CCP §438. Despite there being no opposition to the motion, this Court recognized that th...

Excerpt: ...2016, and thereafter as a Senior Code Enforcement Officer, until he voluntarily resigned from the County in August of 2017. During the latter two years of his tenure with the County, he twice applied for the position of Building Official, which was considered a professional promotion from code enforcement. Although plaintiff had performed many of the duties associated with the Building Official position, the County considered his experience to be...

Excerpt: ...ich consists of two homes situated on a 10‐acre parcel. The lease was to expire on 01/01/22. Smith agreed to pay $2,800/month in rent for use of the whole premises (including both homes), though Cartwright noted additional time was needed “to relocate the occupant” of the front, older house. Critical to the current disputes, Smith paid an additional $20,000 to secure an option to purchase the subject property for $625,000. So long as Smith ...

Excerpt: ...fter “CA‐DAA”) to plaintiff's Second (negligence), Fourth (dangerous condition of public property) and Fifth (premises liability) causes of action set forth in the operative First Amended Complaint. According to defendant, the Second and Fifth causes of action are displaced by Govt. Code §815, and plaintiff failed to exhaust administrative remedies to preserve the Fourth cause of action. Second and Fifth Causes of Action Generally, each pe...

Excerpt: ...r not honoring an alleged agreement to reverse course in 21JD6338 and/or submit the juvenile dependency dispute to arbitration ▪ 21CV45540: petition to confirm alleged arbitration award against Calaveras County Health and Human Service – Child Protective Services (not using Judicial Council form) On 04/15/22, this Court entered an order sustaining without leave to amend the County's demurrer to the respective operative pleading in both 21CV45...

Excerpt: ...hose other requests have since been withdrawn, likely based on plaintiffs' representation that the other defendants have reached a settlement.) Summary Judgment The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. A defendant may prevail on the motion in one of three ways:...

Excerpt: ... analysis. The motion for class certification is GRANTED in part and DENIED in part. Class Certification Basics A plaintiff advocating for class treatment must establish by admissible evidence an ascertainable and sufficiently numerous class, a well‐defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives. A class is ascertainable when it is defined in terms of obj...